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Tag: Easements
Intent must be "clear and unequivocal" to result in dedication of land to the public
September 6, 2022 Gary Taylor
by Gary Taylor
McNaughton v. Chartier and the City of Lawton
Iowa Supreme Court, June 24, 2022
In 1999 McNaughton entered into an easement agreement with the Chartiers to allow a small part of a road to pass through McNaughton's property. The road was used to access the Chartiers' business from Highway 20, and the dedication amounted to a 23' x 80' strip. The agreement provided that it was a "'private' easement granted for the use and benefit of the parties . . . and [was] not to be construed as an easement for the use and benefit of the general public."
Shortly thereafter the city of Lawton paved and completed other improvements to the access road (now Char-Mac Drive). The paved portion covers 13' x 60' of the easement. During the early 2000s the city repeatedly asked McNaughton to dedicate the paved portion to the city but McNaughton refused. The reason he gave was that the city failed to maintain the paved portion of the easement. Language was included in the agreement between McNaughton and the Chartiers that the Chartiers "shall be obligated to take all action necessary to ensure that the town of Lawton becomes contractually obligated to maintain the easement area…." It is unclear whether this happened, but McNaughton testified that the city removed snow only a few times and generally failed to maintain the road.
When the Chartiers sold their property, they discovered that McNaughton had never recorded the easement agreement with the county. The Chartiers asked McNaughton to sign a Clarification of Easement essentially assigning the easement to the purchasers and offered him $15,000 but he refused, and thereafter made various escalating offers ($100,000, then $160,000, then $410,000, then in exchange for 50 acres of farmland) to the Chartiers to either sign the easement or sell his entire property. They refused. McNaughton sued, claiming purchaser had no rights under the easement because of failure to assign them.
The District Court found McNaughton had "dedicated the concrete portion of the easement to the City" because, among other things, the public had used the easement as the parties had agreed and because McNaughton had "never attempted to restrict the use of the concrete portion of the easement area." Alternatively, the district court found that the easement was appurtenant to the Chartier's property and passed to the purchaser upon sale. The Court of Appeals disagreed with both conclusions of the district court, as did the Supreme Court.
The Supreme Court observed that a grantor's intent to dedicate land to the public for public use must be clear and unmistakable, and must be accomplished through "deliberate, unequivocal, and decisive acts and declarations of the owner, manifesting a positive and unmistakable intention to permanently abandon his property to the specific public use." "Mere permissive use of a way, no matter how long continued, will not amount to a dedication." The Court found that the language in the original agreement; that the easement was "not to be construed as an easement for the use and benefit of the general public" established just the contrary. Furthermore, language in the easement that "[t]he easement rights granted herein may not be assigned by Chartier to any other party or parties without the express written consent of McNaughton or his successors or assigns" served to negate the district court's conclusion that the easement passed to the purchasers upon sale.
The specific language in an easement must be given effect. McNaughton wins.
Easements, Iowa Supreme Court, public roads and highways easement by express grant, Easements, Iowa Supreme Court, street easements
Leave a Comment on Intent must be "clear and unequivocal" to result in dedication of land to the public
Court of Appeals finds $25,000 award reasonable for sewer easement
October 23, 2017 ejchr
by Eric Christianson
City of North Liberty v. Gary Weinman
(Iowa Court of Appeals, April 5, 2017)
In 2014 North Liberty was in the process of developing what would become Iowa City Liberty High School to alleviate overcrowding in the Iowa City School District. However, the site selected did not have access to sanitary sewer. To service the area, the City of North Liberty explored several options before selecting its ultimate path in 2014. This path crosses the private property of 13 individuals. The city was able to secure temporary easements (for construction) and permanent easements (for ongoing maintenance) from 12 of the 13. The final holdout was Dr. Gary Weinman who first sought through a pair of lawsuits to force the city to stop construction and reconsider other routes. Those suits failed.
Easements are always considered takings and therefore Weinman was entitled to just compensation under the Fifth Amendment. A compensation commission decided that Weinman was entitled to $75,000. This included a temporary easement for construction (1.1 acres for four months) and a permanent easement (.75 acres). The city appealed claiming that amount was excessive. Weinman requested a jury trial so the matter was tried de novo to the jury. The jury set the compensation amount at $25,000 relying largely on the testimony of an expert assessor brought by the city.
Weinman appealed this decision to the Iowa Court of Appeals. The Court of Appeals does not generally reverse compensation awards provided that they are not "wholly unfair or unreasonable." In this case, because the jury's decision was reasonable based on the evidence, the award of $25,000 was affirmed.
Condemnation, Easements, Iowa Court of Appeals, Iowa District Courts, Public sewer and/or water services, Takings Easements, sanitary sewer service, Takings
Leave a Comment on Court of Appeals finds $25,000 award reasonable for sewer easement
Creek stabilization plan went beyond scope of original drainage easement
November 13, 2016 hdankbar
by Hannah Dankbar and Gary Taylor
Hamner v City of Bettendorf
Iowa Court of Appeals, October 12, 2016
Property owners in the Rolling Meadows subdivision complained that the City of Bettendorf overstepped their powers when they used a 25-foot "utility and drainage easement" established in 1968 for a stream bank stabilization project in 2015. Property owners claimed that the use of the 25-foot easement for stream bank stabilization constituted a taking and argued that they should be compensated for the land. The City did not offer any compensation for the removal of trees, change in land elevation, or the regrading of the property owners' land.
The City argued that it was in the public interest to stabilize the creek, and that the easements granted in 1968 contemplated the type of work conducted by the City in 2015; thus the landowners were not entitled to compensation.
The district court ruled in favor of the landowners because the 1968 easement was granted to maintain the sanitary sewer, storm sewer, Stafford Creek drainage, and utility poles. The court determined that stabilizing the creek overstepped the City's powers. The City appealed.
On appeal, the Iowa Court of Appeals used a three-part test to evaluate the scope of the easement: 1) the physical character of past use compared to the proposed use; 2) the purpose of the easement compared to the purpose of the proposed use; and 3) the additional burden imposed on the servient land by the proposed use.
Physical character of past use compared to the proposed use. The City planned to remove all trees and foliage, install a retaining wall on one side of the creek, and place twenty-five tons of rocks along both sides. The court concluded that this work would substantially change the physical character of the past use of the properties.
Purpose of the easement compared to the purpose of the proposed use. The court found that while the proposed work did pertain to drainage in a general sense…the purpose of the project was to reshape Stafford Creek and the surrounding creek bed to cure past erosion and prevent future erosion.
Additional burden imposed on the servient land by the proposed use. The landowners presented estimates from a consultant of the loss of value of their properties ranging from $27,500 to $30,250. This suggested a burden way beyond that contemplated by the original easement
The court determined that the original grantors of the easements did not "contemplate the expansive use of the easement now sought" by the City, and that the radical changes to the land demanded compensation to the landowners under Article I, Section 18 of the Iowa Constitution (the Takings Clause).
Easements, Iowa Court of Appeals, Takings Easements, Iowa Court of Appeals, Takings
Leave a Comment on Creek stabilization plan went beyond scope of original drainage easement
Plain language of right-of-way deeds grant easements
December 28, 2015 vaagea
by Andrea Vaage
Sargent County Water Resource District v. Mathews
North Dakota Supreme Court, December 1, 2015
Paul Mathews sought to control land rented to him by Nancy Mathews and Phyllis Delahoyde. In response, The Sargent County Water Resource District filed for declaratory relief in November 2012 as the successor in interest to the Sargent County Board of Drain Commissioners. The Board obtained interest in the property through right-of-way deeds signed in 1917 and 1918.
At issue is whether the deed conveyed an easement or an estate in fee. The district court found the deeds granted fee title in property to the District. The Mathews appealed. The Mathews argued the right-of-way deeds from 1917 and 1918 unambiguously show an intent to convey easements for a right of way when read in plain language. In addition, if the deeds were ambiguous, the Mathews argued the district court interpretation of parol evidence is erroneous. When a deed is unambiguous, meaning of the deed is determined from the document itself. When it is found to be ambiguous, extrinsic evidence may be considered.
The deed reads, in part, that owners:
"grant, sell and convey, and forever release to the people of the County of Sargent, in the State of North Dakota, right of way for the laying out, construction and maintenance of a public drain, as the same may be located by the Board of Drain Commissioners, through said above described lands, being a strip of land . . . [described]. And we hereby release all claims to damages by reason of the laying out, construction and maintenance thereof through our said lands."
The Court analyzed the deed to understand the grantor's intent. The deed grants a "right of way" specifically for "construction and maintenance of a public drain" and does not convey an estate in fee. When the granting clause includes the phrase "right of way," courts have found the deed usually conveys an easement. The Court found the deed was unambiguous and conveyed an easement when read in plain language.
The decision of the district court was reversed.
Easements, North Dakota courts, Property law Easements, North Dakota Supreme Court, Property law, right-of-way
Leave a Comment on Plain language of right-of-way deeds grant easements
Landowner not entitled to injunction when ownership of easement rights in dispute
by Kaitlin Heinen
Hawkeye Land Company v. City of Coralville, Iowa
(Iowa Court of Appeals, June 12, 2013)
Hawkeye Land Company filed an application for injunction on April 6, 2012, which involved a parcel of land and railroad tracks located on the southern end of Coral Ridge Avenue in Coralville, Iowa. The application was filed in response to the City of Coralville's decision to extend Coral Ridge Avenue over the tracks in order to provide access to a developing subdivision. Prior to construction of the extension, "Coralville did not initiate eminent domain proceedings." The City negotiated with Heartland Rail Corporation, believing that Heartland, rather than Hawkeye, had the rights to approve the street extension over the railroad tracks. An agreement between Coralville and Heartland was reached.
Both Hawkeye and Heartland claimed to have received ownership from the railroad's original owner, Chicago Pacific Corporation (CPC). Heartland claimed to have purchased rights from CPC and to have been granted rights to operate the rail line including the right to grant easements, such as construction of a street over the tracks. Coralville argued its purchased such an easement from Heartland. On the other hand, Hawkeye argued it purchased rights from CPC including the right to grant easements for "transportation and transmission systems" by "whatever means," which arguably includes streets. The most contentious issue between parties was which party possessed rights to grant easements necessary to extend Coral Ridge Avenue over the railroad tracks and whether that party had been properly compensated. If Hawkeye possessed rights, the extension could constitute a taking requiring eminent domain proceedings and payment to Hawkeye. If Heartland possesses rights, eminent domain proceedings are not necessary because Coralville had compensated Heartland. The district court denied Hawkeye's application for injunction because it found that Hawkeye failed to show that it had suffered irreparable harm and had no adequate remedy at law.
To obtain an injunction, the owner must prove irreparable injury and that no adequate legal remedy is available. "When property has been subject to condemnation, the landowner may permanently enjoin the eminent domain proceedings." Also, "[i]n each case where a permanent injunction has enjoined condemnation under eminent domain, condemnation has occurred first." The Iowa Court of Appeals held that this did not happen in this case. Coralville brought no condemnation proceedings, but Iowa law provides a remedy for a taking that has occurred without condemnation proceedings. Mandamus, or inverse condemnation, is available as a remedy when an agency has taken private land for public use without condemnation proceedings or employing eminent domain. So, the Iowa Court of Appeals ruled that the rights of the parties need not be decided at this time because the question before the court in this case was whether Hawkeye was entitled to an injunction. "A mandamus action is available to it, and as that action will result in the same outcome as a condemnation proceeding, it provides an adequate remedy at law." Yet, "[b]ecause Hawkeye is unable to satisfy the necessities to obtain an injunction," the district court's decision was affirmed.
Easements, Iowa Court of Appeals, Procedural Issues Easements, injunctions, Iowa Court of Appeals
Leave a Comment on Landowner not entitled to injunction when ownership of easement rights in dispute
Filling sinkhole not an allowable activity under TNC conservation easement
July 30, 2012 Gary Taylor
by Victoria Heldt
The Nature Conservancy v. Larry and Marsha K. Sims
(United States Sixth Circuit Court of Appeals, May 21, 2012)
In December 2001 the Sims purchased a 100-acre farm from The Nature Conservancy, Inc. (TNC) in Kentucky. The real estate agreement included an easement to "assure that the Protected Property will be retained forever substantially undisturbed in its natural condition and to prevent any use…that will significantly impair or interfere with the Conservation Values of the Protected Property." The easement also conveyed to the TNC a right to inspect the property annually to ensure the Sims comply with the easement. Without the easement, the property was appraised at $260,400 and with the easement it was appraised at $60,000. The Sims paid $60,084 for the property in addition to a $244,939 tax-deductible charitable gift to TNC.
The property consisted of two sections, one being a residential/agricultural area to be used for the Sims' residence and for commercial agricultural uses. The remaining portion of the land, known as Henslow Sparrow, was to be used only for grazing livestock and producing hay. A detailed description of the condition of the property was included in the agreement. In January 2005 TNC inspected the property and found several instances of non-compliance with the easement. One such non-compliance was the fact that the Sims altered the topography on the property by excavating and re-grading a sinkhole behind their residence. This action violated Section 2.5 of the easement. The remaining instances of non-compliance were remedied by the Sims and the allegations dropped.
TNC's expert geologist was permitted to survey the sinkhole and determine the contours of the ground before the sinkhole was filled. The district court granted summary judgment in favor of the Conservancy, determining that the Sims did indeed violate the easement. It noted that, although the Sims were allowed to make some changes to the property in relation to authorized activities, filling a sinkhole with an estimated 6,269 cubic yards of soil was not one of them. In a later judgment, the court awarded the Conservancy $77,337.50 in attorneys' fees and $18,9902.33 in expenses. Upon examination of the hours billed to TNC, the court subsequently reduced the amount awarded to TNC by $11,774. The Sims appealed both judgments.
In regards to the violation of the easement, the Court ruled that the district court was correct in determining that the Sims were in violation. Section 2.5 of the easement states "there shall be no ditching; draining; diking; filling; excavating; removal of topsoil, sand, gravel, rock, or other materials; or any change in the topography of the land in any manner except in conjunction with activities otherwise specifically authorized herein." Filling the sinkhole clearly violated this condition.
The Sims argued that they are allowed to "enhance their agricultural usage" of the land under Section 3.2 of the easement and in filling the sinkhole they were improving the farming process. Furthermore, they pointed to the phrase within Section 2.5 that allowed for altering the land "in conjunction with activities otherwise specifically authorized herein" in support of their argument. They asserted that farming is an authorized activity and thus they are allowed to fill the sinkhole to improve the agricultural use. The Court rejected this argument, stating that filling is not a normal precursor to farming activities. In addition, "filling" is strictly prohibited within Section 2.5.
Next, the Sims argued that Section 3.7 gives them the right to "dig wells" and "create ponds" and they should therefore be allowed to place the excavated dirt in a sinkhole on their land. The Court dismissed this argument as unreasonable since it would allow the Sims to breach one provision of the easement in order to enjoy another. The Sims further argued that the status of the depression as a "sinkhole" was not disclosed to them before they filled. Regardless, the Court noted that "filling" is explicitly forbidden. The Sims claimed they would not have built their residence so close to the sinkhole had they known they weren't allowed to fill it. The Court determined it was the builder's task to recognize limitations of the property in regards to the construction of a home.
Finally, the Sims challenged the reasonableness of the amount of damages awarded to TNC. The Court noted that the district court took into account all the necessary factors in determining the amount awarded. It carefully examined the record of hours billed and the breakdown of the hours in its decision-making process. The Court determined the award to be reasonable. It affirmed the district court's decision on both judgments.
Easements, Federal courts Easements, Federal 6th Circuit
Leave a Comment on Filling sinkhole not an allowable activity under TNC conservation easement
Lakeway easement interpreted as providing access, not a park
Bedford, et. al., v. Joan Yvonne Rogers, Joan Yvonne Rogers Trust
(Michigan Court of Appeals, April 17, 2012)
The long list of plaintiffs in this case is comprised of property owners within the Glen Eyrie subdivision located on Crystal Lake. The plat (recorded in 1920) and the parties' deeds established a 100-foot wide strip of land designated as the "lakeway" between the plaintiffs' property and the edge of Crystal Lake. The lots do not extend all the way to the water. The lakeway was to be "dedicated to the common use of property owners in Glen Eyrie plat." Sometime after 1920, Crystal Lake Drive was constructed parallel to, and partially within, the lakeway. Surveys done in 2001 and 2010 indicated that the border separating the property owners' lots and the lakeway is located near the center line of Crystal Lake Drive.
Historically, some of the property owners built boathouses or storage units in the lakeway. When Rogers purchased her lot in 1987 a 20 x 28-foot boathouse was built in the lakeway in front of her property. In September 2009 she applied to the township for a permit to build a new 28 x 34-foot boathouse to replace the existing one. The township granted the permit and Rogers began construction in October 2009. The new "boathouse" was to include running water, heat, toilet facilities, a kitchenette, a workshop, and a second floor cupola.
As Rogers' construction was in its early stages, the plaintiffs wrote a letter through an attorney asking Rogers to cease construction since the lakeway was reserved for the common use of property owners. Rogers refused to stop the construction. In December 2009 the Lake Township Zoning Administrator wrote her a letter stating the building violated the township's zoning ordinance since it "includes substantial space designated by the Building Department as living quarters" and issued a stop work order. Rogers appealed the administrator's opinion and, in April 2010, the Board of Appeals voted that the boathouse constructed should be "allowed as a compatible non-commercial recreational facility." The Board did place certain conditions on the property that included the removal of certain residential features (e.g. a tub, shower, and certain fixed kitchen appliances).
In trial court, the plaintiffs filed a request for summary disposition citing trespass and nuisance. They argued that the plat dedication granted property owners an "irrevocable easement over the lakeway property and prevented defendant from exclusively using the portion of the lakeway in front of her lot by constructing a new structure that expanded the footprint of the old boathouse." Rogers also filed for summary disposition, arguing she owned the portion of the lakeway in front of her property and had the right to make use of it. The court noted that a tacit agreement existed among land owners that 100% of the lakeway was not dedicated for common use since most property owners built boathouses for personal use. History supported that claim since most of the structures had existed for over 40 years. The court acknowledged that the expansion of this boathouse by several feet would not further prevent other land owners from using and enjoying the lakeway. It determined the expansion should be allowed.
On appeal the Court of Appeals first noted that a use under a plat dedication must be within the scope of the dedication and must not interfere with the owners' use and enjoyment of the property. In this case, the plaintiffs interpreted the plat dedication to create a park for common use by the lot owners. This Court of Appeals disagreed. The dedication stated that "the drive, court, spring road and lakeway" were dedicated for common use. When interpreting language like this, it is in accordance with precedent to treat word groups in a list as having related meanings. The drive, court, and spring road are all used as right-of-ways (access) for lot owners to travel to, from, and within the plat, not as a park (which implied open space without obstructions). The Court stated that the lakeway is to be considered similar; i.e., as a right-of-way. The Court further noted that the term "lakeway" suggests it should be used as a right-of-way rather than a park (since the word "way" is found within the term.)
Subsequently, the Court determined that "the scope of the dedication created an easement within the lakeway for common use of lot owners of the land as a right-of-way that allows lot owners to use the lakeway in the same manner as the drive, court, and spring road." Since Crystal Drive, which runs through the lakeway, satisfies the purpose of a right-of-way providing access, there is no need to prohibit obstructions such as boathouses from the lakeway. The Court determined that the slightly larger boathouse would not prevent residents from using and enjoying the lakeway for its purpose as right-of-way any more so than the previous boathouse did. Thus, it affirmed the trial court's decision.
Covenants and deed restrictions, Easements, Michigan courts, Plats Easements, home owners association covenants, Michigan Court of Appeals, Plats, waterfront property
Leave a Comment on Lakeway easement interpreted as providing access, not a park
Landowner could not limit access of easement holder to one specific route
November 28, 2011 Gary Taylor
Enbridge Energy, LP v. Donovan Dyrdal, et al.
(Minnesota Court of Appeals, October 24, 2011)
The Dyrdals own agricultural property that is subject to easements held by Enbridge Energy. The easements were granted in 2009 by the power of eminent domain and allowed Enbridge "rights of ingress and egress as are reasonably necessary or convenient in the exercise of such easement rights." Enbridge, a public-service corporation, installed and maintained pipelines in the easement. Soon after completing the pipeline installation, Enbridge discovered problems at two locations, so the crew began working to correct them in January of 2010. They used a field road on the Dyrdal property to access the two spots. In response, the Dyrdals placed large hay bales across the field road and in the ditch between the problem sites, preventing Enbridge from accessing their work site. Enbridge claimed this delay cost them an additional $28,697.80 in project costs.
Enbridge sought a declaratory judgment and injunctive relief in district court alleging a breach of easements and a violation of the eminent-domain order, among other things. They also moved for a temporary injunctive relief to prevent the incident from reoccurring during litigation, which the court granted. The Dyrdals countered with a claim of immunity under Minnesota's statute preventing strategic litigation against public participation (SLAPP). The statute's goal is to prevent parties from using the threat of costly litigation to silence those who want to debate public issues. The district court eventually granted Enbridge's motion for summary judgment on the issue of declaratory relief, finding Enbridge did indeed have the right to access the property to maintain the pipelines.
The Dyrdals appealed, their first claim being that the district court erred when it denied their request for partial summary judgment on the grounds of Minnesota's anti-SLAPP statutes. The anti-SLAPP statute can be used to dismiss claims that relate to public participation. The Court noted that public participation is defined as "speech or lawful conduct that is genuinely aimed in whole or in part at procuring favorable government action." The Dyrdals argued that, since Enbridge gained access to the property by means of an eminent-domain procedure, it was acting as a government agent in its actions. Consequently, they claimed that the anti-SLAPP statue was applicable. The Court disagreed. They noted that the power of eminent domain does not make the entity a government agent once the power has been exercised. In addition, they found that Enbridge was exercising its rights as an easement owner, not a government agent, in accessing the property. Further, the Dyrdals previously claimed that they placed the hay bales on the road in order to load them and not to interfere with Enbridge's work. If that is true, then their conduct was not to "procure favorable actions from Enbridge," but for their own private farming operations. As a final note, the Court noted that it had recently found that a preexisting legal relationship could limit a party's ability to file an anti-SLAPP claim.
The Dyrdals also alleged that the district court abused its discretion when it granted temporary injunctive relief. In evaluating whether a temporary injunction is appropriate, the Court considers five factors: 1) the nature and background of the relationship between the parties; 2) the balance of harm to the parties; 3) the likelihood that the party seeking the injunction will prevail on the merits of the action; 4) wither there are public-policy considerations; and 5) whether there are any administrative burdens involved in judicial supervision and enforcement of the temporary injunction. After analysis, the Court found that the first three factors favored Enbridge, while the last two were neutral.
The Dyrdals focused mainly on the third factor. The Court had reasoned that the language in the eminent-domain ruling showed Enbridge had a clear right to access the property and that constituted a showing that they would most likely win on the merits of the case. The Dyrdals claimed that the real-estate doctrine of practical location limited Enbridge's right of entry to one specific route. The boundary by practical location can be established by acquiescence if one party chooses a specific route and the other agrees accepts it over a period of time. The Dyrdals contend that an alternative route (and not the field road) that was previously used had been established by acquiescence. The Court noted the plurality in the phrase "rights of ingress or egress" that appeared in the eminent-domain ruling. It found that the ruling did not prescribe one specific route of access, so the Dyrdal's claim was insufficient to disprove the likelihood of Enbridge's success in a claim. Additionally, the practical location by acquiescence doctrine requires acquiescence over a period of time. In this case, the easement was relatively new and substantial time had not passed in which to establish a route by acquiescence. The Court affirmed the district court's decision regarding the temporary injunction.
Easements, Minnesota courts boundary by acquiescence, Easements, eminent domain, Minnesota Court of Appeals
Leave a Comment on Landowner could not limit access of easement holder to one specific route
Use of roadway by mobile home park residents went beyond scope of easement
113th Avenue Road Fund Assn. v. I & R Properties, Inc.
(Iowa Court of Appeals, November 9, 2011)
Plaintiff 113th Avenue Road Fund Association (the association) is a voluntary, unincorporated group of lot owners in a subdivision called BJ Mahoney"s Second Subdivision in Scott County. Plaintiff Sandra K. Moore is the former association president and owns Lot 1 in the subdivision.The defendant, I & R Properties, Inc. (I & R), owns lots 13, 14, and 15 in the subdivision and operates a trailer park—the Lake Canyada Mobile Home Park—"partially on, and adjacent to, the subdivision." (although I & R denied owning the lots and affirmatively stated that Lake Canyada L.L.C. is the record title holder of the property. The district court observed, "the legal relationship between I & R Properties and Lake Canyada is not clear. . . . [but] I & R Properties is at least the resident manager and authorized agent of Lake Canyada L.L.C.").
I & R and Lake Canyada use residential buildings on lots 13 and 14, located on 113th Avenue, as an office for the mobile home park and as a residence for the park"s manager. Several mobile home residents use 113th Avenue as their ingress and egress to their mobile homes. In addition, I & R cut a roadway through lot 15, which connects with 113th Avenue. The crude roadway provides the occupants of approximately 235 trailer lots with a shortcut to 113th Avenue so that they may access Lake Canyada's business office. The sixty-six-foot-wide roadway was first recorded in a 1948 plat of the B.J. Mahoney"s Second Subdivision, and the Mahoneys recorded an affidavit in 1964 reaffirming their dedication of the roadway for the use of "all of the owners of lots" in the 1948 plat. On June 30, 1986, the owners of the land adjoining the road signed an agreement for continued maintenance and access to and from their properties. That agreement stated that 113th Avenue is designated "as a private road for residential use for all owners and residents of the Lots in said Auditor's Plat of B.J. Mahoney's Subdivision and B.J. Mahoney's 2nd Subdivision. The owners of the following adjoining lots to the described road state that each party has the right to use the described road for residential use to Ingress and Regress." In 1986, Dean Harding managed Hawkeye Real Estate Investments and signed the agreement for Lots 13, 14, and 15. Over the years, several disagreements arose between trailer park management and subdivision landowners concerning the meaning of the agreement, and the use and maintenance of 113th Avenue. The latest disagreement resulted in this lawsuit over the interpretation of the agreement. The district court ruled that I & R could not use lots 13, 14, and 15 for commercial purposes, and that the association could erect blockades to prevent trailer park residents from using 113th Avenue. I & R appealed.
The parties agreed that the district court went beyond the scope of pleadings in restricting the use of lots 13, 14, and 15. However, they still disagreed about the scope of the 1986 agreement concerning use of the road. I & R recognizes the 1986 agreement referenced "residential use" of the road, but argued that phrase "cannot fairly be construed to ban traffic related to the operation of the park as a place where persons reside. The Court of Appeals disagreed. The testimony about 113th Avenue reveals that the lots adjoining the private road were held and used by about twenty people for their own residences in 1986, as opposed to any commercial or business endeavors. The notion that more than two-hundred occupants of mobile homes may use I & R's easement to transact business at the manager's office and to gain a quicker connection to a public road was not contemplated by the lot owners who signed the 1986 agreement for access and maintenance of the private road. The agreement did not contemplate that I & R could open the private road to hundreds of customers who rented trailer lots from the company. That commercial use of the road by non-residents has created an unintended burden on common holders of the easement. The agreement's reference to proportional responsibility for the maintenance costs also supports the conclusion that the signatories did not anticipate opening 113th Avenue to non-residents who would benefit from their use of the private road without contributing to its upkeep.
The Court of Appeals found that I & R violated the 1986 agreement by allowing the different type of use of 113th Avenue by their tenants. It affirmed the district court's declaration that I & R's roadway on Lot 15 should be closed to through traffic to 113th Avenue, the north end of 113th Avenue should be closed to access from the mobile home park, and I & R should be prohibited from interfering with the association's enforcement of the agreement.
Easements, Iowa Court of Appeals Easements, Iowa Court of Appeals, roadways
Leave a Comment on Use of roadway by mobile home park residents went beyond scope of easement
Iowa C.A. adjudicates easement rights of Mississippi River frontage owners
October 12, 2009 Gary Taylor
Clancy v. Jessen
(Iowa Court of Appeals, October 7, 2009)
Landowner may grant easement rights beyond prior deed restrictions so long as they do not impair existing rights of other easement holders.
In 1964 the Kelloggs acquired 2.07 acres of property north of the city of McGregor that included 198 feet of riverfront along the Mississippi River. The property was bisected by railroad tracks. Three years later they subdivided the property into 17 lots. Lot 17 had the entire 198 feet of riverfront, but the Kelloggs platted drives so that the other 16 lots were given vehicular access to the riverfront via Lot 17. The 10 lots west of the railroad tracks were sold over the years – purchasers coming to be known as West Enders – with the following language granting the easement:
"Grantors convey easement to use platted drives, and to travel access and use over and across Lot 17 of Kellogg's Subdivision, to Mississippi River, and use of riverfront adjacent thereto."
The 6 lots east of the tracks were sold – purchasers coming to be known as East Enders – with the same language, and also included the following notation:
"Grantors further agree that no buildings of any type shall be allowed on said Lot 17. Permission granted to grantees to install 3 docks for 3 boats on said Lot 17."
Eventually 3 docks were built with room for multiple boats. Historically, both East Enders and West Enders docked boats at those docks.
The Kelloggs sold Lot 17 in 1986. In 2007 several lot owners proposed several new dock plans to the Army Corps of Engineers, who must review and approve such plans on the Mississippi River for navigability. The Corps approved a plan that provided for one large community dock in the middle of Lot 17 that would accomodate the boats of all West Enders, and two smaller new docks. The plan left two of the existing docks in place.
Two East Enders brought suit to stop development of the new dock plan, arguing that only the deeds of the East Enders granted permission for boat docks, and that the West Enders' deeds granted no such rights. The Court of Appeals disagreed. The East Enders' claims must fail, reasoned the court, if the docking priviledges granted to the West Enders do not impair the East Enders' easements rights. The owner of Lot 17 may elect to confer on the West Enders more benefits than they are entitled to, but that is not concern of the East Enders unless their rights are adversely affected. The granting of rights to East Enders to install "3 docks for three boats" did not give them rights to have their docks in a particular location on Lot 17.
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Program #STAR001. Recorded in Cambridge, MA on May 17, 2000.
PBS, the Public Broadcasting Service, came out of the 1967 Public Broadcasting Act. Almost as soon as it began airing TV programs it came under political attack. Richard Nixon, in a fury over so-called "liberal bias" in programming, vetoed its budget. Since then, the assaults on PBS and its funding have continued, ebbing and flowing with the political season. What's been the result? Turn on the tube and see for yourself. Antiques Roadshow, British comedies, cooking shows, African animals without Africans and a whole host of conservative talk shows, all sponsored by what is called "enhanced underwriting." Critics like Jerry Starr say PBS plays it safe and doesn't take risks for fear of offending Congress and corporate sponsors.
Jerry Starr is an activist and award-winning sociologist. He is founder and executive director of Citizens for Independent Public Broadcasting. CIPB promotes noncommercial broadcasting in the service of the public interest. He is the author of Air Wars.


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Q: java SDK for SIP softphone client I want to build a SIP client in java. A java class that will register with a SIP registrar and will be able to call another sip client.
Any suggestions?

A: you can try my softphone if you want, it provides a very simple api. It's called peers:
http://peers.sourceforge.net/

A: Jsip is a good Java SIP client library. It is stable, RFC-conformant and follows JAIN SIP specification.
http://java.net/projects/jsip

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For you to qualify as a user, you must be over 18 years and be a citizen of Spain, France, Italy, the United Kingdom, Australia, China, Brazil, Switzerland, Germany or New Zealand. Additionally, you must own the computer you will use to register with. You should also inform all the other people who will use the computer that the app is installed.
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FAQ : Is the Gap Theory a possible explanation for the long ages suggested by the fossil record?
Mount Everest – Ages ago, the Eurasian and Indian continents collided spectacularly to form the Himalayas. Geological movement continues to take place to this day as India is gradually pushed beneath China and Nepal at a rate of about 3 inches per year. Going by the current rate of upwelling, it would have taken Mount Everest at least 100,000 years to rise to its 29,035-foot elevation. Before the great collision, the bedrock that makes up the Himalayan range was at the bottom of the Indian Ocean. The top 1,500 feet of Mount Everest is comprised of limestone. This type of rock is slowly formed by the deposition and consolidation of the skeletons of marine invertebrates. Because these creatures are miniscule, it would take a very long time to accumulate these limestone layers.
Coral reefs – Coral is formed by the skeletons and calcium deposits of tiny animals that live in warm shallow seas. It has been estimated that it takes about 100 years to produce a few centimeters of coral growth. One coral atoll has been measured at 3,900 feet in depth.
Light and cosmic events – The sun is one of countless numbers of stars in our galaxy. The galaxy is more than 100,000 light years across. This means that light from some stars in our galaxy has taken many tens of thousands of years to reach earth. A common explanation for our ability to see stars that are millions of light years away is that God created the light from these distant stars already in transit. There are two more factors to consider. As light travels through the universe, its properties are altered by forces it encounters, which gives us a travel log of its journey. Many of the cosmic events we see in the universe take millions of years to occur. It doesn't seem logical for God to have constructed such a multifaceted elaborate hoax.
Bristlecone pine trees – The annual growth rings of trees are among the most reliable measures of time. Some Bristlecone pine trees in the White-Inyo mountain range of California date back beyond 6000 BC.
Ice Ages – In North America, more than 20 glacial advances and retreats have occurred during the last 2 million years. It takes a foot of snowfall to produce an inch of glacial ice. Considering that some of the ice has been thousands of feet thick, centuries of snow are needed to produce each ice age event. These glaciers would have had to move across the land like freight trains to fit into the 6,000-year model.
Hawaiian Island chain – If you could remove all of the water from the Pacific Ocean, you would find that the Hawaiian Islands are peaks on a 10,000-foot-high ridge that extends 3,000 miles to the northwest. The Hawaiian chain gets progressively older and becomes more eroded the farther you travel beyond the volcanically active region of the "Big Island" of Hawaii. All three factors–the movement of the ocean's crust, the building up of volcanic islands, and their erosion–are very time-consuming geological processes.


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Canada's Trey Lyles scores 21 points to lead Pistons past Raptors
January 14, 2022 Canuck	Sports/Basketball/NBA
Canadian Trey Lyles scored 21 points, Cade Cunningham and Hamidou Diallo each added 18 and the Detroit Pistons extending their surprising stretch by beating the Toronto Raptors 103-87 on Friday night.
The Pistons are 5-3 in 2022 after finishing 2021 with 18 losses in their last 19 games.
"We're finally getting into a rhythm and figuring out the best way to play together," Diallo said. "We've got so many young guys in our locker room and they are learning that it is a long year. You can't get too high or low after one game."
However, they were coming off a 133-87 loss in Chicago on Tuesday.
"We've had more games lately where we've taken the opportunity to hit the other team right off the bat, and tonight shows what happens when we do that," Lyles said. "Obviously, we didn't do that in Chicago, and we got embarrassed."
WATCH l Saskatoon's Lyles shines for Pistons in win over Raptors:
Pistons defeat Raptors as Canada's Trey Lyles leads the way
Saskatoon-bornTrey Lyles scores a team-high 21 points in Detroit's 103-87 victory over Toronto. 1:03
Josh Jackson had 13 points off the bench as the Pistons held Toronto to 32.2% shooting. With three starters spending much of the night in foul trouble, Lyles and Jackson came off the bench to play an important role in the win.
"We are undersized every night, and tonight we had Trey at his size (6-foot-10) going against three 7-footers out there," Pistons coach Dwane Casey said. "So for him to get us 21 points and seven rebounds is a yeoman performance."
'Our energy was low'
Fred VanVleet had 24 points and 10 assists for Toronto, but shot 6 for 21 from the floor. Pascal Siakam added 23 points and 11 rebounds for the Raptors, who have lost two straight after winning six in a row.
"We need to be ready when we come out to play on the road, and we didn't do that tonight," Raptors coach Nick Nurse said. "Our energy was low at the start and we spent the whole night trying to find it."
Scottie Barnes finished with eight points on 4-of-13 shooting in his return from COVID-19 and knee soreness.
"Coming off the COVID break, it was tough to get my knee at 100 percent," he said. "I just have to be able to get back to trust my body again."
Detroit built a 56-43 halftime lead — its largest of the season — by holding the Raptors to 28.6% shooting, including 2 for 9 for VanVleet. The Pistons also had a 22-7 edge in bench points for the half, including 15 from Lyles.
Detroit extended the lead to as many as 18, but had several key players in foul trouble. The Raptors got within 69-60, but their continued offensive struggles meant they trailed 83-66 at the end of the third.
Pistons' Diallo (6) drives with the ball as Siakam, left, and VanVleet of the Raptors defend during the first half. (Carlos Osorio/The Associated Press)
"I thought we did a good job defensively in the first half, but we took that to another level in the third," Jackson said. "We know how fast the Raptors can get back into a game, so we didn't want to give them that chance."
Jackson started the fourth with a 3-pointer, giving the Pistons their first 20-point lead of the season, but VanVleet's 3-pointer made it 91-83 with 3:39 to play. Cunningham put the margin back to 11 with a 3-pointer with 2:41 left, and Detroit clinched the game from the free-throw line.
Casey, who coached from the Raptors from 2011-18, has now beaten them five straight times with the Pistons.
"I don't get any joy from beating Toronto. Getting fired is part of the business and that's a long way back in my rear-view mirror these days," he said. "Fred and Pascal are like sons to me. I helped them get started in this league and I'm proud to see what kind of players they have become. I hope they both end up on the All-Star team."
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News & Media License to Learn
License to Learn
Stall commandments
November 1, 2010 By Rod Machado
Are you nervous about stall practice? You have copious company. One student I inherited from another instructor became so nervous during the stall sequence that he developed a peculiar habit of humming along with the stall horn.
Rod Machado will be a featured speaker at AOPA Aviation Summit 2010 in Long Beach, California. He will offer three different forums this year. He is also a co-host for a "Dine Around" event on Thursday, November 11. For more information, visit the website.
Are you nervous about stall practice? You have copious company. One student I inherited from another instructor became so nervous during the stall sequence that he developed a peculiar habit of humming along with the stall horn. I'm not kidding. This airplane had a two-tone stall horn and he'd hum right along, changing pitch with the horn. During the stall, his tunnel vision was so intense that you could put a moving finger up to his lips and have him make the "boo, boo, boo" sound that's perfectly normal—for an infant.
Why do some pilots get nervous when the wings of their airplane go on an aerodynamic strike? One word: predictability. Specifically—the lack of it. If an airplane stalled and always pitched only forward along a plane perpendicular to the lateral axis of the airplane (from the student's nose to his feet), then stalls would be a ball, and most people's discomfort would be tamed. The problem is that during the stall one wing can reach its critical angle of attack before the other. Once that happens, the airplane begins to yaw and roll in the direction of the most stalled wing. You know where that can lead, right? I'm talking about the "cardinal spin" of aviation—the unanticipated spin.
Here are the two stall commandments you need to know to make stalls more predictable and much more fun:
Stall commandment number one: Thou shalt not stall an airplane in uncoordinated flight. To some this may be a revelation, but it's actually sound stall theory and one of the most important rules about making stalls more predictable. It's also the single biggest reason you always want to fly coordinated.
When an airplane approaches the stall with the inclinometer's ball displaced even slightly, one wing may have a slightly larger angle of attack than the other. The result? One wing stalls before the other, and the airplane begins to yaw and roll in the direction of that wing. Why does this happen? Imagine you're in a skidding left turn, meaning that the nose points inside the turn and the ball deflects to the outside of the turn (think too much left rudder for the bank angle used). Excessive left rudder yaws the airplane's nose to the left, resulting in the left wing moving rearward (the wing slows down slightly) and downward (increasing its angle of attack slightly). The result is that the left wing stalls first in the left skidding turn. Had you been on the ball and kept it centered, both wings would stall simultaneously, and the airplane would pitch from your nose to your toes. Unless you are a professional prizefighter, that means the airplane will pitch straight ahead of you in a very predictable manner. No yaw and roll. Recovery from this type of stall is easy—reduce the angle of attack by releasing elevator backpressure and apply maximum allowable power to help further reduce the angle of attack and minimize altitude loss.
Now what happens if you have happy feet and accidentally stall an airplane in uncoordinated flight? Your stall becomes a hummer and a bummer. It's time to follow the second stall commandment.
Stall commandment number two: Thou shalt not lift a falling wing with thy ailerons, but instead thou shalt simultaneously reduce the angle of attack and stop the yawing motion with rudder.
That's right. If you stall an airplane in uncoordinated flight, it's likely that your nose (actually, the one on the airplane) will begin to yaw at the moment of stall. You may be in a tizzy, but you're not yet in a spin, so you don't apply full spin recovery technique (more on this momentarily). You're in a normal stall with one wing stalling a bit more than the other. That's why you're yawing (and perhaps hearing a slight hum in your headset).
Reduce the angle of attack and simultaneously stop the yaw by applying rudder in the direction opposite the yaw (whatever you do, don't lift the falling wing with the aileron until you're sure it's no longer stalled). How much rudder do you use? Push the pedal to the metal until the yaw stops. You aren't going to hurt the rudder. Your rudders don't have feelings. Keep in mind that your rudder is the last flight control forfeited in the stall. That means it works well during the stall, mainly because it's poking up behind the airplane into the free airstream. If the airplane doesn't yaw it won't spin. Period.
Of course, if you dilly instead of dally, and let the airplane enter a full spin, then you'll want to do what my friend and spin expert Rich Stowell recommends in his ultimate stall book, Stall/Spin Awareness. You'd use the PARE technique—reduce Power, neutralize the Ailerons, apply opposite Rudder to stop the yaw, and then use the Elevator to break the stall (but don't break anything else, even if it's a rental). Do you see the pattern here? It's your rudder that either stops the yaw before the spin, or stops it in the spin. Rudders rule.
So there you have a low-hum, two-commandment plan of action that allows you to have a ball with stalls. But do try and keep that ball centered.
Longtime CFI Rod Machado has recently published his newest instruction manual. Visit the author's blog.
Alaska CFIT
Into thin air
Pilot Training and Certification
CAU grad Elza Nikita offers Sage Advice to future Pilots


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For THIRD time in approximately 7 months, my internet is not available because of some transmit problem or whatever state code 12.3.2 is. I really don't have time to talk to "technicians" on the phone, knowing I have already tried multiple times exactly what they are going to insist I go through again.
My internet has been down since before Christmas, I have been running my home network using my Verizon hotspot. I live in the mountains of Idaho and I don't get the best reception on my cell phone, so it is slow, if it doesn't go away altogether, depending on where I am standing. However, gotta have internet, so I have to bear with it. It is extremely inconvenient.
Living on a ranch doesn't give a person much time to spend 1 plus hour on a phone talking to somebody who is just going to end up sending someone out anyway. Now, granted, the last time this happened (I think about 2 or 3 months ago), the techs here in the community section were much much more help than anyone I would speak to on the tech phones. I know they have to run through a script they have to troubleshoot, but I have already done all that, because I know HOW to do all that now. I could probably WORK at hughesnet by now seeing as I know just as much, if not more, than the supposed techs on the phones. I digress though. As much as it irritates me to speak to the phone people, on the opposite end of the spectrum, the techs here actually know what they are doing and are extremely helpful and do things expiditiously. I do appreciate that. It's still a pain that I even have to be here though, so I'm not TOTALLY going to praise all of Hughesnet! No offense to the techs here. You all are fine.
I need this problem rectified again as soon as possible! Just like I am ranting on Hughesnet, I am also getting the 1st degree by my boyfriend who MUST be on Craigslist nightly (he thinks the whole internet is Craigslist, but he's learning!), so since he knows absolutely NOTHING really about anything remotely technical, I have to do it, and he thinks all I have to do is call somebody and they just flip a switch. Wishful thinking! So here I am again. He pays the bill so I gotta keep him happy or we get no internet. Well, he won't. I have a smart phone. Digressing again.
Some info. There was no storm or windy nights when the internet went out. I have unplugged the modem multiple times. It is even unplugged now, because sometimes it seems to not let me connect my computer on my hotspot. Could just be a fluke, dunno. When it is plugged in, I think the only lights that are on, are the power light, and the LAN light, I already ran the systemcontrolcenter multiple times when I did have the modem hooked up. State code is 12.3.2 - A transmit problem, Summary Operational State - Down, TCP acceleration Down. Those are the things I think are related, please let me know if I am wrong! Thank you in advance for your help.
Thank you for reaching out. I apologize for your frustration. After reviewing your account, I see that we need to send a tech out to your location. Please see your private messages for further assistance.


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Natural disasters costlier than ever in Asia
Thailand expects 400 foreign visitors in early November
From earthquakes in New Zealand and Japan, to heavy flooding in Australia and Asia, economic losses in the first nine months of 2011 came to $259 billion, of which only about $52 billion was insured, according to Munich Re, a global insurance company which covers natural disasters.
Akanksha Singh
Natural disasters in Asia in 2011 could well prove to be the costliest ever, experts say. "Never before has this world suffered so much economic loss due to natural disaster, most of which has been in Asia and the Pacific," Sanjay Srivastava, UN regional adviser for disaster risk reduction, told IRIN in Bangkok.
Of the global US$270 billion of economic losses to natural disasters in 2011, 90 percent was in Asia, he said.
Of the global US$270 billion of economic losses to natural disasters in 2011, 90 percent was in Asia
The $220 billion of damage caused by the earthquake and tsunami in Japan accounted for the bulk of the losses, according to Srivastana.
In addition,
"the unprecedented flooding in South-East Asian countries this year is estimated to have caused a cumulative production loss of about $6.3 billion or 0.9 percent of the combined gross domestic product [GDP] of Cambodia, Lao People's Democratic Republic, the Philippines, Thailand and Vietnam,"
said a 9 December statement by the UN Economic and Social Commission for Asia and the Pacific (ESCAP), the UN's regional development arm for the Asia-Pacific region.
"The costliest natural catastrophe [in Southeast Asia] may be the Thailand floods with overall economic losses in the billions," said Michael Able, a spokesman for Munich Re.
Yet less than 9 % of costs in the Asia Pacific region were insured, says Munich Re
While economic and human risks are high due to increasing urban populations, insurance coverage in many countries in the region remains too low to effectively protect against hazards.
"Most of the burden will fall on the state which will have to cover recovery and rehabilitation, including the pressure to address the challenge of reducing future risks," said Sanny Jegillos, the UN Development Programme's regional coordinator for disaster risk reduction.
via IRIN Asia | ASIA: Natural disasters becoming costlier than ever
In the past five years, "resilience" (the ability to absorb shocks and recover) has become quite a buzzword in the aid community. Discussions on adapting to a changing climate are increasingly peppered with the "need to build resilience" of people, infrastructure and governments in the face of shocks such as soaring temperatures, rising sea levels, severe storms and flooding.
In a review of its humanitarian operations (HERR), the UK government was among the first donors to place resilience at the centre of its "approach both to longer-term development and to emergency response" and announced its intention to scale-up work on resilience.
Aid experts and NGOs provide various reasons for the growing popularity and emergence of resilience as a concept. Some are sceptical. But they all agree it is a positive approach that will bring the worlds of development and humanitarian aid closer.
What does resilience mean in the aid world?
Some call it just another addition to the growing aid jargon. But mostly people call it a new approach, a "lens", which has given new meaning to "sustainable development".
Maarten van Aalst, director of the Red Cross/Red Crescent Climate Centre and co-ordinating lead author of the summary of the special report on Managing the Risks of Extreme Events and Disasters to Advance Climate Change (SREX) produced by the Intergovernmental Panel on Climate Change (IPCC) in 2011 explains it thus: Under the conventional sustainable development approach, if a road had to be constructed in a rural area, benefits – such as the impact on the lives of the communities living alongside, creation of job opportunities from the maintenance of the road and development of markets for the farming community – would have been taken into consideration.
Related Topics:climateflooding
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redpajama_set_name: RedPajamaGithub


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text:
Reporting & Administration
Differentiators
By Matt MyersFebruary 12, 2021September 24th, 2021No Comments
OPENING THOUGHTS
Change and uncertainty.
Those were the primary drivers behind my decision to start publishing a newsletter a little less than a year ago. I know I know, shocking that it was not my limited literary acumen that was the impetus. I always thought writing one about the consumer lending space would be something that hopefully added value for Goal Solutions partners and friends. With the onset of COVID, and the related spike in postponements and subsequent questions about what was coming next, that moved it out of the large category of things in my head I will likely never do, to something that actually came to fruition. I was having conversations every day with originators, investors, and warehouse providers who were worried about loss rates spiking and impairing portfolios, and distressed credit funds who were praying for that exact event to happen. Consolidating data we were/are seeing both publicly and in our own portfolios then wrapping it in my faux wit seemed like a good opportunity to connect with lots of people at once and try to keep them up to speed on the consumer loan asset class we focus on.
Fast forward to today. Somewhat ironically fears and concerns about loan performance that the newsletter was initially predicated on, have not come to fruition (yet), largely thanks to government support, to the happiness of the originators, investors, and lenders (plus rating agencies), and to the despair of the distressed credit funds. But change today is very real. The change we are seeing now is a different type of change, but the impact will be significant. The change I am referring to is the macro-political climate around consumer lending with the changing administration at the Federal level and a building tide among individual states to be more activist. We will likely see the CFPB revert to a more aggressive, shoot first ask questions later posture, doing discovery on issues through CIDs. We will continue to see more states taking a heavier hand in overseeing lenders, servicers, and collectors. In student loans, an asset class that we started out in and remain heavily involved into this day, we will see legislative and executive actions aimed at solving what is often referred to as a 'debt crisis' while likely not addressing the real issue which is a cost crisis in higher education. And overall we will see social policy get pursued through financial regulation as rules play whack-a-mole with the symptoms of socioeconomic dynamics, to which I say good luck with that.
But not all is bad! Another asset class we spend lots of time in, residential solar will be a beneficiary of the change as renewables get a tailwind out of Washington. Similar benefits will likely be seen in C-PACE and we recently signed our first commercial hydroelectric generator lender client, in the category of asset classes that were not in the business plan. So while loan performance as measured by delinquency and charge-offs remains on the more mundane side of the news spectrum there is no shortage of things to talk about; it seems like there are good reasons for the newsletter to march on.
Matt Myers
Loan Performance
Not a ton has changed in terms of the overall macro loan performance story, but still worth summarizing the current state of strong performance and lingering concerns using the most updated data especially as year-end data comes out.
Starting off the loan performance section where the last issue left off, updated Kroll MPL data shows that while there has been some deterioration overall performance remains materially stronger than pre-COVID.
Probably not surprising given all the government support and low delinquency rates that came out of it, but still noteworthy that 2020 consumer BK filings declined significantly (~30%) from the 750k/year range that existed in the prior half-decade and were at the lowest filing level in 34 years.
Driving the strong loan performance fundamentally 2020 was a year of saving and deleveraging for consumers, the upshot of which was significantly lower card balances and higher bank deposits.
One other consequence of the deleveraging and saving that 2020 saw is that the average FICO score rose 7 points to 710, the highest increase ever. For reference purposes, the highest increase prior to 2020 was a 3.8-point rise in 2016.
As a result of the solid loan performance and optimism of it continuing with the additional support being worked on in Washington, banks are starting to dial back loss reserves which is driving higher earnings.
But this would not be a newsletter penned by me without calling out the signs of distress that exist, especially in the housing market. While forbearance rates are high and still rising there is a possible reckoning coming soon as roughly a quarter of the postponements came to an end in March.
And while there were 3.4mm delinquent mortgages as of the end of 2020 and 10mm renters (18%) are behind on their payments consumers appear to be hoping that the new administration continues to extend the eviction moratorium. I've never thought much of hope as a strategy but seems to be working for people (and the equities markets) so far since COVID started, which shows how much I know.
With the Biden administration getting into gear I think I could write 100 pages about the regulatory landscape. But nobody wants to read that much of my ramblings so I'll do my best to be succinct about all that is going on.
The CFPB is en fuego as they prepare for the arrival of a familiar face in Rohit Chopra to lead the new regime. While they wait for Rohit the interim director David Uejio has wasted no time in getting the agenda rolling announcing priorities which include some oldies but goodies from the Obama era like credit bureau reporting, debt collections, auto, prepaid cards, and student loan servicing. They also commenced a probe into Venmo, provided guidance for dealing with limited English proficiency borrowers, and threatened to halt implementation of initiatives from the prior regime (who said a final rule was actually 'final') such as revising the QM definition and more impactfully (at least to me) the revamped debt collections rules set to go in later this year. Lastly (at least for now) on the CFPB is the release of the 2020 complaint data. I guess it is not a shocker that the (what I thought was a crazy idea) notion I cited in the last newsletter about the CFPF becoming the lone credit bureau is gathering some steam, or at a minimum getting more attention.
Fresh off a name change and broadened mandate the artist is formerly known as the California Department of Business Oversight (DBO) now named the Department of Financial Protection and Innovation (DFPI) is opening new divisions, hiring people, and looking to justify its expanded budgetary existence by going after an always popular industry for regulators looking to generate headlines, debt collections.
Quick note on the circuit court world, TCPA interpretations continues to be as much art as law.
Another month means another negative Navi headline, this one has them sending $22mm back to the DOE.
Sticking with student loans looks like loan cancellation is picking up steam. I would be surprised if the $50k number Warren has been pushing happened, but less surprised than a month ago.
I thought this article showing the companies with the largest consumer loan portfolios was pretty interesting.
The buy now, pay later march continues on.
More from Kroll, while 2020 was down in terms of ABS issuance in aggregate it did see growth in residential solar, where we spend lots of time. With the new administration, this should provide even more of a tailwind to the sector.
Despite the (at least what I perceive) success of Marcus looks like they are cutting costs and walking back from their initial goal of being profitable in 2021. As long as I can keep earning 50 bps on my Marcus online savings account…
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text:
Home Washington Pierce County Tacoma James W. Beck
James W. Beck
Gordon Thomas Honeywell LLP
Appeals & Appellate, Civil Rights, Consumer Law...
James joined GTH after completing a clerkship for the former Chief Justice of the Washington Supreme Court. He focuses his practice pursuing trials in the areas of personal injury, catastrophic accidents, employment law, and insurance coverage.
He has briefed and argued multiple appeals, including cases before the Ninth Circuit Court of Appeals and the Washington Supreme Court. In his practice he has represented families in wrongful death cases, victims in sexual abuse cases, and many returning U.S. service members who face discrimination or retaliation in the workplace.
When he's not working, he's blazing trails, scaling peaks, and skiing with his wife, who works as a local primary care physician, and their three adventurous children.
U.S. District Court, Eastern District of Washington
U.S. District Court, Western District of Washington
Partner, Board of Directors
Georgia State University College of Law
Honors: Graduated first in class; summa cum laude
The University of Georgia School of Law
B.S. | Ecology
Super Lawyer
Washington Rising Stars
Also awarded from 2008-2012
Award for Excellence in the Study of Labor and Employment Law
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